Mcb4

🚨 Can an employer be represented by an advocate before a labour officer while an employee is denied the same right? In Constantine Joseph Advocates LLP v Attorney General, ELRC Petition No. 27 of 2022, the Employment and Labour Relations Court examined the constitutionality of Section 48 of the Employment Act, which restricts legal representation in complaints presented before labour officers. Section 48 prohibits advocates from representing parties in proceedings before a labour officer. However, it permits representation or assistance by officials of trade unions and employers’ organisations, even where those officials are advocates. The Petitioner challenged the provision, arguing that it threatened the constitutional right to a fair hearing by denying parties access to legal representation. The Court declared the limitation on legal representation unconstitutional to the extent that it excludes advocates representing employees while permitting advocates acting as officials of employers’ organisations. Three aspects of the judgment are particularly significant: 1. The restriction created unequal treatment between employers and employees. The Court found that Section 48 effectively allowed an employer to be represented by an advocate who was an official of an employers’ organisation, while excluding an employee from similar legal representation. This created an unequal playing field and violated Article 27(1) of the Constitution, which guarantees equality before the law and equal protection and benefit of the law. 2. Proceedings before labour officers are subject to constitutional standards of procedural fairness. The Court recognised that labour officers exercise an administrative mandate under the Employment Act. Their proceedings are therefore subject to Article 47, which guarantees every person the right to administrative action that is lawful, reasonable and procedurally fair. 3. Limitations on constitutional rights must satisfy the test under Article 24. The Court found that the restriction imposed by Section 48 was neither reasonable nor justifiable in an open and democratic society. It noted that the provision, enacted before the promulgation of the 2010 Constitution, could not justify allowing one party access to legal representation while denying the other the same opportunity. The broader constitutional question The judgment highlights the importance of equality of arms in administrative dispute resolution. Although labour officers provide an alternative avenue for resolving employment disputes, the process must still respect constitutional guarantees of fairness and equal treatment. Key takeaway: Employers and employees appearing before labour officers should not be subjected to unequal standards of legal representation. A statutory provision cannot restrict access to legal representation in a manner that unjustifiably discriminates between parties. 👉 Follow @Lexken_EMSLaw for practical legal insights on employment law, constitutional rights and emerging legal issues in Kenya.

🚨 Winning a breach of contract case is not the same as proving what the breach cost you. The Supreme Court has wiped out a KSh 103 million lost-profit award for exactly that gap. This is National Social Security Fund Board of Trustees v Micro-City Computers Limited, Supreme Court Petition No. E037 of 2025, decided on 30 October 2026. Here is what it means. In 2011, the National Social Security Fund contracted Micro-City to install a security system at Social Security House for about KSh 244 million. The Fund never handed over the site, citing budget constraints, and later re-advertised the tender. The courts found that the Fund had breached the contract. The fight that reached the Supreme Court was not about the breach. It was about the KSh 103 million Micro-City claimed in profits it would have earned had the contract run its course. The Court used the case to settle how anticipated profits are proved and valued, and the answer is one every business and every lawyer should note. ✅ First, what lost profits are. Damages for breach of contract aim to put the innocent party where it would have been had the contract been performed. Lost profits are part of that expectation, but they are the net profit, receipts less the cost of earning them, not the gross contract price. And they are capped by the contract's own terms. You recover the value of lawful performance, not the best outcome you can imagine. Here the contract let the Fund terminate on one month's notice, so the profit could not be valued as though years of performance were guaranteed. ✅ Second, the standard of proof. The Court clarified a point that has long caused confusion. Strict proof of special damages does not mean a higher standard of proof. The standard is the ordinary civil one, the balance of probabilities. Strict proof is about the quality and particularity of the evidence, not the level of certainty. The law asks for as much certainty as the loss reasonably allows, no more. ✅ Third, and most importantly, a two-stage test. Before a court values a lost profit, the claimant must first prove that the loss happened at all, that it was ready and able to perform, what it would have earned, what it would have spent, and over what period. These are historical facts, and they cannot be assumed from the breach. Micro-City's claim failed at the foundation. Its expert projection was not an audit, assumed the figures it was given were accurate, mixed in company-wide expenses, left the managing director's own far lower estimate unexplained, and assumed years of maintenance the contract never guaranteed. The legal dispute worth noting. On one side, a wrongdoer should not escape because the breach itself made the profit hypothetical. If courts demanded mathematical precision, a party could breach and then hide behind the very uncertainty it created, so the law gives the innocent claimant a fair wind and lets the court estimate once loss is shown. On the other side, damages are compensation, not a windfall, and a court cannot hand over millions on a projection built on untested assumptions and a period the contract never promised. Discipline in proof protects defendants, here a public fund, from paying for profits that were never really shown. Where the fair wind of estimation ends and the free ride of guesswork begins is the line this judgment draws. Key takeaway: to recover lost profits, prove the fact of the loss with real, particular evidence first, and only then may the amount be estimated. Lost profits are net, not gross, and never exceed the value of what the contract actually guaranteed. An expert's arithmetic cannot prove the assumptions it rests on, and a silent opponent cannot fill the gaps in your proof. 👉 Follow @Lexken_EMSLaw for practical legal insights on commercial litigation and contract damages.